The opinion of the court was delivered by: Richard M. Berman, U.S.D.J.
Before the Court is Maersk Line Ltd.'s ("Maersk" or "Defendant") second motion to amend or obtain relief from the judgment filed on July 30, 2012, pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. (Def. Mem. of Law in Supp. of Mot. to Amend J or Relief from J., dated July 30, 2012 ("Def Mem.").)*fn1 Defendant argues, among other things, that 15 (additional) seamen should be removed from the Class because Defendant "overlooked" the fact that they are governed by an American Maritime Officers Union Collective Bargaining Agreement, dated August 6, 2007 ("AMOU CBA"), and are not entitled to any overtime pay that they could have earned on days during which they were ill or injured while in Defendant's employ. (Def. Mem.; Affirmation of John J. Walsh, dated July 30, 2012 ("Walsh Aff."), ¶ 5, Ex. A at 14.) Defendant argues that "manifest injustice" would result if these 15 seamen "were permitted to obtain overtime benefits that are plainly disallowed by" the AMOU CBA. (Def. Mem. at 1.)
On August 6, 2012, Plaintiff filed an opposition arguing, among other things, that the 15 seamen should not be removed from the Class (whose members have been awarded overtime pay) because: (1) Defendant's motion is "too late." (Pl. Mem. of Law in Opp'n to Mot. to Amend J. or Relief from J. ("Pl. Opp'n") at 1.) Among other things, the motion was filed after Defendant had filed a brief in the United States Court of Appeals for the Second Circuit on June 13, 2012 seeking to overturn the Court's January 31, 2012 judgment ("January 31, 2012 Judgment"); and (2) the (15) seamens' entitlement to unearned wages (overtime) may not be modified by contract. (Pl. Opp'n at 1-3); Docket, No. 12 Civ. 0834 (2d Cir. 2012).)
For the reasons set forth below, Defendant's motion to amend or obtain relief from the judgment is denied.
A motion to alter or amend a judgment under Rule 59(e) "must be filed 'no later than 28 days after the entry of the judgment.'" Flemming v. New York, 423 F. App'x 64, 65 (2d Cir. 2011) (quoting Fed. R. Civ. P. 59(e)). Where both an original and an amended judgment exist, a party "may not [base] its own untimely request for alteration of the [original] judgment on a wholly independent" ground from the one that gave rise to the amended judgment. McNabola v. Chicago Transit Auth., 10 F.3d 501, 520 (7th Cir. 1993); see Kazazian v. Bartlett & Bartlett LLP, No. 03 Civ. 7699, 2007 WL 4563909, at *3 (S.D.N.Y. Dec. 19, 2007).
"Motions under Rule 60(b) are addressed to the sound discretion of the district court and are generally granted only upon a showing of exceptional circumstances." Mendell ex rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990). "[W]here a party fails to act with diligence, he will be unable to demonstrate that his conduct constituted 'excusable neglect'" under Rule 60(b)(1). State St. Bank & Trust Co. v. Inversions Errazuriz Limitada, 374 F.3d 158, 177 (2d Cir. 2004).
Preliminarily, the Court has jurisdiction to decide this motion because, although Defendant previously filed a notice of appeal (on March 1, 2012), a "district court can entertain and deny [a] [R]ule 60(b) motion" while an appeal is pending. Toliver v. Cnty. of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992); (see Order, No. 12 Civ. 0834 (2d Cir. Aug. 8, 2012).)
Rule 59(e) Motion Defendant acknowledges that its Rule 59(e) motion is six months late ("delayed") but argues, nevertheless, that removal of the 15 seamen would not prejudice the Class and would prevent a "windfall." (Def. Mem. at 2.) Defendant also mentions that "the amended judgment has only recently been entered and the case is on appeal." (Def. Mem. at 2.) As noted, Plaintiff counters that Defendant's motion is "too late" under Rule 59(e), (Pl. Opp'n at 1), and points out that Defendant has already "filed its [b]rief in the Second Circuit." (Pl. Opp'n at 1.)
Defendant's Rule 59(e) motion is untimely because it falls far outside the 28-day filing period and concerns "wholly independent grounds" than those that gave rise to the July 25, 2012 Amended Judgment (which dealt with awarding prejudgment interest in the amount of $88,402.57 and removing two seamen from the Class).*fn2 Meilleur v. Strong, 682 F.3d 56, 60 (2d Cir. 2012); McNabola, 10 F.3d at 520; see Kazazian, 2007 WL 4563909, at *3; (Decision & Order, dated July 23, 2012, at 3, 6.)
Defendant argues that its 181-day delay in bringing its Rule 60(b) motion is "excus[able]." (Def. Mem. at 2.) Defendant explains that it "overlooked" the AMOU CBA because other collective bargaining agreements which Defendant more closely reviewed did not contain a definition of unearned wages and the AMOU CBA "seemed to be the same." (Def Mem. at 2; Walsh Aff. ¶ 5; H'rg Tr., dated July 19, 2012, at 7:25--8:2.) As noted, Defendant also argues that removal of the 15 seamen would not prejudice the Class. (Def. ...